Human Values in a Postmodern World Steven L. Winter* More than forty years ago, Maurice Merleau-Ponty identified a philosophical fault line that continues to rumble through diverse contem- porary debates. "Today," he proclaimed, "a humanism does not oppose religion with an explanation of the world. It begins by becoming aware of contingency. ' In the current period of deconstruction and other postmodernisms, Merleau-Ponty's rejection and reconception of the Enlightenment idea of humanism has greater resonance than ever.2 For many, it has become a postmodern truism that "the human condition" cannot be represented, described, or explained as just so many facts about the world. According to the now standard (if somewhat overstated) axiom of postmodernism, everything about humanity is socially contingent. Reactions vary dramatically. For some, the recognition of contingency appears to open up conceptual space for transformative politics and radical social change. For others, however, the specter of contingency is radically destabilizing. Because they equate social contingency with the loss of foundations, they believe that social contingency leads inevitably from moral relativism to nihilism. For them, the logic of this trajectory is ineluctable. If everything is socially contingent, no social or moral system can claim greater validity than any other. And if all such systems are equally valid, then we are left with no reliable values, no moral standards, and no criteria of choice. The absence of sure foundations, they are convinced, means that we are left with an alarming and intolerable nihilism.3 * © Steven L. Winter, 1994. All rights reserved. 1. MAURICE MERLEAU-PONTY, SIGNS 241 (Richard C. McCleary trans., 1964) (lecture delivered September 10, 1951). 2. The questions of Merleau-Ponty's influence on and relationship to postmodernism are explored and debated in the essays collected in MAURICE MERLEAU-PONTY, HERMENEUTICS, AND POSTMOD- ERNISM (Thomas W. Busch & Shaun Gallagher eds., 1992) [hereinafter BUSCH & GALLAGHER]. 3. This is what Richard Bernstein calls the "Cartesian Anxiety." See RICHARD J. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS 16-18 (1983) ("Either there is some support for our being, a fixed foundation for our knowledge, or we cannot escape the forces of darkness that envelop us with madness, with intellectual and moral chaos."). Yale Journal of Law & the Humanities, Vol. 6, Iss. 2 [1994], Art. 5 Yale Journal of Law & the Humanities [Vol. 6: 233 Each of these reactions is mistaken, however, whatever the precise scope of the social contingency claim.4 It is only a conceptual trompe l'oeil that makes social contingency appear emancipatory.5 The lack of objective foundations does not translate into freedom from constraint; that would be true if and only if objective foundations were the sole form of constraint imaginable.6 By the same token, there should be nothing disturbing in the recognition that the problem of moral choice has proven irreducible to a set of determinate principles or rules. It simply does not follow that we are unable to engage in moral judgment using the tools we do have. This is, after all, what we have been doing all along; indeed, it is what we did even when we believed in a universal Reason.7 The crucial point is that both poles of the opposition between freedom and determinacy assume the very same objectivist (that is, foundationalist) premises concerning what counts as constraint. 8 In this ironic way, many 4. Martha Nussbaum wants to know what position I hold on this question. In effect, she asks: Are there any values that, though internal to human history, are nevertheless necessary for any human society? Martha C. Nussbaum, Valuing Values: A Case for Reasoned Commitment, 6 YALE J. L. & HUMAN. 197, 201 (1994). For an extended treatment of my view, see Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. PA. L. REV. 1105 (1989). Focusing as I do on the centrality to cognition of embodiment and imagination, my position on the extent of social contingency is sufficiently complex and unconventional that it does not admit of a simple answer. Because humans start from more or less the same set of embodied, basic-level experiences in constructing their physical, social, and moral worlds, a serious comparative study of values is likely to reveal a pattern of relative similarity. But one consequence of the role of imagination in human rationality is that elaborations are likely to differ across cultures with respect to specifics, content, framing, and degree of entrenchment. Accordingly, it seems unlikely to me that concentrating on basic human experiences such as embodiment, mortality, and the like will yield anything more than normative family resemblances. Indeed, Nussbaum's own account of such similarities is remarkably thin. See Martha Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in THE QUALITY OF LIFE 242, 263-65 (Martha Nussbaum & Amartya Sen eds., 1993). Let me give one example that is not merely a matter of different specifics (see id. at 256-57), but rather turns on differences of framing. All humans need to eat and to maintain bodily integrity in order to survive. But it is not at all clear that we can derive definite, universal norms from this fact. Fasting is a common religious practice, as self-flagellation once was. So, too, we are familiar with the power of the hunger strike as a tool of political struggle. There will be circumstances in which a committed adherent can give what will be, for her, cogent reasons for pursuing a course of conduct that to others seems aberrant and self-destructive. In such cases, we have a genuine instance of incommensurability of values--one that indulges neither the detachment from commitment nor the rhetorical strategies of "unrealistic goals" and "loaded dice" that Nussbaum here decries. See Nussbaum, Valuing Values, supra, at 206. 5. See STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES 447-50 (1989). 6. See Winter, supra note 4, at 1107-13, 1117-29; cf. MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE 229 (1990) ("[O]ne suspects that the retreat to subjectivism or skepticism betrays a residual commitment to metaphysical realism as the only form of truth worth having .... ); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 4-5 n.8 (1984) ("Nihilism is only a partialrejection of rationalism: The nihilist ... would argue that a rational foundation is necessary to sustain values but that no such foundation exists or can be identified."). 7. Cf. MERLEAU-PONTY, supra note 1, at 203 ("What is certain is that if there is some universal Reason we are not in on its secrets, and are in any case required to guide our lives according to our own lights."). 8. For a discussion and critique of these shared underlying assumptions concerning reason, logic, and the nature of concepts, see Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. https://digitalcommons.law.yale.edu/yjlh/vol6/iss2/5 2 Winter: Human Values in a Postmodern World 1994] Winter putative postmoderns who confidently believe that they have transcended foundationalism remain the unwitting victims of the droll paradox I like to call "antinomial capture." But it is both possible and desirable to escape the distorting grip of these objectivist assumptions. To do so, we must radically rethink the concepts of contingency, relativism, nihilism, and the relationships between them. My perhaps controversial claim is this: More than anything else, it is this reconfigured understanding that characterizes the "postmodern." Postmodernism is conventionally identified with more familiar tenets such as the rejection of meta-narratives and the deconstruction of meaning. But to focus on these particular elements in isolation distorts postmodernism, leading to the mistaken conclusion that postmodernism is just a form of radical skepticism. In contrast, as I have argued previously, these claims must be understood en ensemble with the postmodern decentering of the self.9 So viewed, postmodernism's most profound contribution is its radical insistence on contingency.' ° In this essay, I say something about the origins, nature, and consequences of this postmodern understanding of contingency. In particular, I argue that this postmodern reconception changes fundamentally the way we think about the problem of values. Paradoxically, my argument is that postmodernism does not undermine values at all, but instead reinvigorates our understanding of their deeply human dimension. Values are not to be found elsewhere, outside ourselves and our practices; they are profoundly human products made real by human action. Social contingency, therefore, is the precondition for truth-not its enemy. As Merleau-Ponty observes, "whatever truth we may have is to be gotten not in spite of but through our historical inherence."" This insight both undermines and overturns the logical trajectory that supposedly runs from relativism to nihilism. Indeed, from this perspective, the relations between relativism and objectivism are virtually inverted. Once contingency and historicity are understood as the prerequisites for the REV. 635, 649-61 (1990), and Winter, supra note 4, at 1117-59. The basic point about the hidden complicity between objectivism and subjectivism was made by Merleau-Ponty as early as 1945 when his Phenomenology of Perception first appeared. See MAURICE MERLEAU-PONTY, THE PHENOMENOL- OGY OF PERCEPTION 39 (Colin Smith trans., 1962) ("We pass from absolute objectivity to absolute subjectivity, but this second idea is no better than the first and is upheld only against it, which means by it. The affinity between intellectualism [i.e', idealism] and empiricism (i.e., objectivism] is thus much less obvious and much more deeply rooted than is commonly thought.").